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Conservatives slam expanded definition of rape

Some conservatives say the definition of sexual assault has become too broad, hurting ‘real’ victims

WASHINGTON – “It’s vulgar and it’s annoying” that women get groped all the time, Christina Hoff Sommers acknowledged. It was something she herself had experienced in younger days. But it wasn’t worthy of the term “sexual assault.”

Sommers, the conservative thinker and feminist contrarian, spent her time at the podium unpicking the statistic that almost 1 in 5 women are sexually assaulted at college, which has been regularly cited by the White House and media reports. Sommers’ main critique was that the 2007 survey – one of several that have reached similar figures – counted things as sexual assault that weren’t necessarily “real” sexual assault, like “forced touching of a sexual nature" – which could be fondling, groping or forced kissing – and sexual contact when a person was too drunk to consent.

That 1 in 5 figure was the stuff of “moral panic,” she said.

Hoffman is part of a new anti-anti-rape backlash, spawned by the recent intense attention to campus sexual assault. And the main focus of the teeth-gnashing – most famously displayed by Washington Post columnist George Will – concerns the extent of the problem itself. The charge goes that the concept of sexual assault has broadened – and it’s true. The last four decades have seen nothing short of a revolution in how sexual assault is defined.

Beyond force

A sample question in the 2007 "Campus Sexual Assault Study."National Institute of Justice

Historically, state laws required rape victims to prove that they had physically resisted “to the utmost” – pleading, crying and screaming weren’t enough. But decades of research have shown that this isn’t how most rape works. Women are usually raped by someone they know, and they often freeze up and submit out of fear, shame or incapacitation.

And thanks to the rise of women in law and the work of advocates, our laws have been evolving: Since the 1970s, it’s become illegal for a man to rape his wife; a woman’s sexual history has been banned as evidence; victims no longer need to prove they didn’t consent with bruises and broken bones; and states have included unwanted sex with an incapacitated person into the ranks of sex crimes.

In 2012, the FBI removed “force” as a requirement in its definition of rape.

Sommers compared that to asking people if they’d ever been hit or kicked by a sibling growing up, and then publishing it as a statistic on family abuse.

But the idea of sexual assault as a violent, sneak attack by a stranger is still pervasive, which is why the researchers in the most recent 1 in 5 survey didn’t use the term sexual assault when asking students questions.

“Rape and sexual assault conjure up violent images of someone attacking me, that someone is often a stranger… and they’re beating me, they’re hurting me,” Chris Krebs, a senior researcher at RTI International, and the lead author of the study, told America Tonight. “…We did what we thought would give us the most accurate estimate of what met the legal definition for rape and sexual assault.”

Instead, researchers asked students specific questions about their experiences. Most of the rape victims in the study, when later asked, didn’t actually define their own experiences as rape. Sommers compared that to asking people if they’d ever been hit or kicked by a sibling growing up and then publishing it as a statistic on family abuse.

'Lesser' assault

But Krebs said these “less-real” assaults, which didn’t involve penetration or an additional physical pummeling, can still be extremely damaging.

“There are plenty of women who experience lesser forms of sexual violence and are seriously impacted,” he said.

Laura Dunn, a leading activist on college sexual assault, agreed. “As someone who was first forcibly groped in high school before they were gang-raped in college, it does have an effect,” said Dunn, adding that she cried the entire night after she was groped. “It’s your first realization that you’re unsafe in this world.”

But the majority of victims in the 2007 study weren’t just groped – around three-quarters were penetrated. One in 29 college women reported that they had been forcibly raped. One in 12 reported that they were raped when they were incapacitated and unable to consent.

The fact that huge percentages of assault victims say their offenses weren’t serious enough to report to the police, or that they were partly to blame for it – particularly in cases involving alcohol, and not force -- is further painful proof to Dunn that women learn to expect or accept violations that fall beneath that “utmost resistance” bar.

Dunn said that when she was carried up the stairs by two classmates and raped, the abuse continuing even as she vomited, she didn’t think it was a crime. (Dunn was right. It was 2004, and Wisconsin law didn’t yet consider alcohol an “intoxicant” that would make a person unable to consent.)

There is the possibility that an incapacitated rape victim gave signals that made it unclear to the other person that she was so intoxicated and the sex was unwanted. But a landmark study – one of the few to focus on rapists, rather than victims – found that serial rapists commit more than 90 percent of college rapes, and that they often target vulnerable women, deliberately getting them drunk.

Utmost consent

Some bristle at the idea that women don’t understand and can’t accurately label their own experiences – and need to be told after the fact by advocates that they were actually victims of assault.

“Being told you were raped, denied agency, when you really made bad choice?” said Cathy Young, a libertarian feminist writer on the panel. “I’m calling for more responsibility on the part of everyone, including the media.”

Earlier this month, Young reviewed the disciplinary documents of a college sexual assault case that had been making headlines: Brown University had allegedly punished a brutal rapist who had choked his victim with a yearlong suspension. What Young found was far murkier.

At the panel, Young said these “new” sexual assaults were trivializing to “real” rape victims. Young added that it was offensive to conflate “the experience of going along with unwanted sex, because you’re not sufficiently assertive to say, ‘No,’ with being violently thrown down and basically in fear of your life.”

“College males might be prudent to tape record their partners consent at every state of the encounter."

Stuart Taylor

Senior fellow at the Brookings Institution

In practice – in courtrooms, in school hearing boards and in studies -- the two aren’t conflated. But many victims and activists say that rape is still rape, whether it began as a kidnapping or a date, or the person was frightened into submission or fought tooth and nail.

And in a significant leap from the old “utmost resistance” punch-and-kick model, college misconduct codes are pioneering an “affirmative consent” approach to sexual assault. To prove they didn’t consent, victims simply have to prove that they didn’t overtly consent through words or actions. In cases with little physical evidence and no witnesses, these policies can often be the only way for a college to make a judgment on responsibility.

But some criticize the standard as heavy handed, and warn that under these policies, there’s a higher risk that men could be railroaded by false accusations, or that a man could have sex with a women who lies frozen, or says no but keeps touching him, or says no weakly, or is extremely drunk, or just cries, and then the next day could blindside him with an accusation of rape.

“College males might be prudent to tape record their partners consent at every state of the encounter,” half-joked panelist Stuart Taylor, a senior fellow at the Brookings Institution and author of “Until Proven Innocent” on the Duke lacrosse scandal.

The uniqueness of rape

Studies show that between 8 and 10 percent of rape allegations are false. And the fear of false claims is one of the reasons rape laws, historically, have been so unique. (For example, victims of robbery were never required to show they physically resisted to prove they didn't consent.)

But rape, in one major way, is also an incredibly unique crime: The vast majority of incidents aren’t reported at all.

In the latest 1 in 5 study, just 5.8 percent of victims of forcible rape pursued criminal charges, and 0.6 percent filed an official report with their school. In alcohol-enabled cases, only 1 in 500 did either.

And that was the main point made by the panel’s final speaker, Andrea Bottner, the former director of the International Women’s Issues Office at the State Department during the most recent Bush administration. She didn’t even dip a toe into the muddy waters of the “real rape” debate.

Instead, she described the women she met in Saudi Arabia, who counseled rape victims in secret, in fear of their safety, never even dreaming of justice. She described how there were girls in Nigeria who were too afraid to go to school because they could be jumped and raped on the way. And then, there were the little girls she met in Vietnam, repeatedly raped and broken – and blamed by their guardians for their abuse.

The crowd hushed, even the other panelists. There was no need to hand-wring over language or tout personal responsibility. No need to slice and dice the semantics of consent.